Tim Tyler wrote: > > Alexander Terekhov wrote: > > Tim Tyler wrote: > > [...] > >> You have no right to redistribute the software - with > >> or without the source code - under copyright law, unless > >> such freedom is granted by a license. > > > > Stop being such an idiot, Tyler. From "Understanding Open Source and > > Free Software Licensing": > > > > http://www.oreilly.com/catalog/osfreesoft/book/ch06.pdf > > (Chapter 6: Legal Impacts of Open Source and Free Software Licensing) > > [snip] > > It seems to agree that open source licenses - giving the example > of the MIT license - are unenforcable by contract law: > > ``Nonetheless, the absence of affirmative consent (such as > clicking on a text box as required by the clickwrap license) > is troubling to courts, and correctly so. It seems unfair to > enforce terms of a contract to which one of the parties has > done nothing to positively affirm. > > This issue has obvious application to the open source and > free software licenses already discussed. Staying with the > MIT License, say, for example, that an ordinary user comes > across a piece of code that is subject to this license. > The user takes the code and uses it on his personal computer. > The user incorporates the code into a program that he is > writing. The user distributes the program, either for profit > or not. At no point has the user taken any affirmative, > symbolic action that would indicate his consent to the terms > of the license that is comparable to the act of signing a > contract.''
In the case of open source and free software licenses, the "user" manifests assent by simply taking action(s) reserved to copyright owners. > > That's why the open source licenses do not rely on contract law, [... more Moglen's and PJ's bullshit ...] An intellectual property license is a contract. In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th Cir. 2003) ("If a breach of contract (and a copyright license is just a type of contract) . . . "); see also McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) ("Whether express or implied, a license is a contract 'governed by ordinary principles of state contract law'"). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fed&%20navby=case&no=991431 "A license is governed by the laws of contract." But feel free to believe that the entire US federal judiciary is just a bunch of narrow-minded fools in denial of Moglen's genius and that they all should go and keep taking SFLC's seminars until they finally get his "not a contract" theory. > Copyright violation: preliminary injunction; > Contract violation: no preliminary injunction. Sort of. :-) http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf ("With respect to the General Public License...") The standard for PI under copyright infringement claim includes presumption of irreparable harm. The judge didn't apply it (and used a contract standard instead). Note also "portion breach of contract claim" and "didn't cure the breach" wording (one just can't "cure" a copyright violation). Finally, that decision is tagged as "Nature of Suit: 190" and that's neither 820/840 nor 190/820/840 (all three). http://pacer.psc.uscourts.gov/documents/natsuit.pdf 190 is CONTRACT/Other Contract 820 is PROPERTY RIGHTS/Copyrights 840 is PROPERTY RIGHTS/Trademark regards, alexander. -- "The revolution might take significantly longer than anticipated." -- The GNU Monk Harald Welte _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss